IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARGARET A. POWELL

Plaintiff,

 Civil Action 2:12-cv-746

v. Judge Michael H. Watson

 Magistrate Judge Elizabeth P. Deavers

 

COMMISSIONER OF SOCIAL SECURITY,

Defendant. 

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff’s Motion for Award of

Attorney Fees and Costs Pursuant to the Equal Access to Justice Act (ECF No. 18), Defendant’s

Response in Opposition (ECF No. 19), and Plaintiff’s Reply (ECF No. 20). For the reasons that

follow, it is RECOMMENDED that Plaintiff’s Motion be GRANTED. It is further

RECOMMENDED that the Court AWARD Plaintiff attorney’s fees in the amount of $3,645. 

I.

Plaintiff filed this action on August 17, 2012, seeking review of an adverse decision of

the Commissioner of Social Security (“Commissioner”). (ECF No. 1.) On January 29, 2013, the

parties jointly filed a Stipulation of Remand, expressing their agreement that the Administrative

Law Judge had failed to evaluate the severity of Plaintiff’s alleged mental impairments and

address a number of psychological opinions within the record. (ECF No. 15.) Based upon the

parties’ representations, the Court remanded this case to the Commissioner and directed the clerk

to enter judgment in Plaintiff’s favor. (ECF No. 16.) On February 13, 2013, Plaintiff filed the

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instant Motion seeking an award of attorney’s fees under the Equal Access to Justice Act

(“EAJA”). 

II.

Plaintiff seeks an award of attorney’s fees for twenty and one-fourth (20.25) hours that

her counsel worked on this case before this Court. The EAJA provides as follows:

Except as otherwise specifically provided by statute, a court shall award to a

prevailing party other than the United States fees and other expenses, in addition to

any costs awarded pursuant to subsection (a), incurred by that party in any civil

action (other than cases sounding in tort), including proceedings for judicial review

of agency action, brought by or against the United States in a ny court having

jurisdiction of that action, unless the court finds that the position of the United States

was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). Accordingly, a party will generally be entitled to attorney’s fees

under the EAJA when he or she is the prevailing party and the government’s position was not

substantially justified. See Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129–30 (6th Cir. 2007)

(outlining requirements under the EAJA). The Commissioner “bears the burden of

demonstrating that its position was substantially justified.” Pickering v. Mukasey, 306 F. App’x.

246, 247 (6th Cir. 2009).

The EAJA limits recovery of attorney’s fees to $125 per hour unless the court concludes

that the circumstances justify a higher rate: 

The amount of fees awarded . . . shall be based upon prevailing market rates for the

kind and quality of the services furnished, except that . . . attorney fees shall not be

awarded in excess of $125 per hour unless the court determines that an increase in

the cost of living or a special f actor, such as the lim ited availability of qualified

attorneys for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A). In analyzing the EAJA, the United States Court of Appeals for the

Sixth Circuit has emphasized that the “statutory rate is a ceiling and not a floor.” Chipman v.

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Sec’y of Health & Hum. Servs., 781 F.2d 545, 547 (6th Cir. 1986). Furthermore, “[i]n requesting

an increase in the hourly-fee rate, Plaintiffs bear the burden of producing appropriate evidence to

support the requested increase.” Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir.

2009). Accordingly, the Sixth Circuit has held that “Plaintiffs must ‘produce satisfactory

evidence—in addition to the attorney’s own affidavits—that the requested rates are in line with

those prevailing in the community for similar services by lawyers of reasonably comparable

skill, experience, and reputation.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11

(1984)).

In determining the appropriate rate, the Court may allow for a cost of living adjustment to

justify an award in excess of $125 per hour. See Begley v. Sec’y of Health & Hum. Servs., 966

F.2d 196, 199 (6th Cir. 1992). The determination of whether a cost of living increase justifies a

fee in excess of the $125 rate is left to the Court’s discretion. Id. It is not sufficient, however,

that a party submit only the Department of Labor’s Consumer Price Index and argue that

inflation justifies an increase in fees. Bryant, 578 F.3d at 450.

III.

Plaintiff seeks an award of attorney’s fees in the amount of $3,645 for twenty and onefourth (20.25) hours that her counsel worked on this case before this Court. (Pl.’s Mot. 5, ECF

No. 18.) The Commissioner does not contend that his position was substantially justified or that

Plaintiff was not the prevailing party within the meaning of the EAJA. Nor does she contest the

reasonableness of the number of hours Plaintiff’s counsel worked on this case. The

Commissioner’s sole objection relates to the reasonableness of the hourly rate Plaintiff seeks to

recover. (Def.’s Opp. 3–7, ECF No. 19.) Specifically, the Commissioner argues that the

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requested hourly rate Plaintiff seeks, which calculates to a rate of $180 per hour, is excessive. 

(Id.)

The Undersigned concludes that Plaintiff has produced satisfactory evidence that her

counsel’s requested rate comports with prevailing rates in the community. Bryant, 578 F.3d at

450. Plaintiff has provided an affidavit of her counsel, which reflects that his normal billing rate

is $200 per hour. (Farrell Aff. ¶ 6, ECF No. 18-2.) Plaintiff also submitted an affidavit of Gary

J. Pandora, an experienced Columbus attorney practicing in the area of social security, in which

Mr. Pandora asserts that fees up to $200 to $225 per hour are “in line with prevailing rates in

Ohio for the same type of services provided by lawyers of reasonably comparable skill,

experience and reputation” as Plaintiff’s counsel. (Pandora Aff. 2, ECF No. 18-4.) Plaintiff also

submitted a copy of the Department of Labor’s Consumer Price Index demonstrating an increase

in the cost of living. (ECF No. 18-3.) Additionally, Plaintiff has submitted excerpts from a

study the Ohio State Bar Association sponsored concerning attorney hourly billing rates in 2010. 

(See ECF No. 18-5.) The study reflects that the 2010 mean billing rate in the Downtown

Columbus area, which is where Plaintiff’s counsel practices, was $266 per hour. (Id.) The study

also shows that the 2010 mean billing rate for firms in Ohio with three to five attorneys, which is

the size of Plaintiff’s counsel’s firm, was $210 per hour, and the 2010 mean billing rate in Ohio

for attorneys with more than twenty-five years experience in practice was $229 per hour. (Id.) 

The Undersigned finds that the foregoing evidence sufficiently supports Plaintiff’s counsel’s

requested rate increase. 

Plaintiff requests that the fees be paid directly to her attorney; Defendant requests that

any award be paid directly to Plaintiff. In Astrue v. Ratliff, --- U.S. ----, 130 S.Ct. 2521 (2010), a

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social security case considering the Commissioner’s payment of attorney’s fees under the EAJA,

the Supreme Court held that “a § 2412(d) fees award is payable to the litigant and is therefore

subject to a Government offset to satisfy pre-existing debt that the litigant owes the United

States.” Ratliff, 130 S.Ct. at 2524. The Ratliff Court noted that “the Government has since

continued the direct payment practice only in cases where the plaintiff does not owe a debt to the

[G]overnment and assigns the right to receive the fees to the attorney.” Id. at 2529.

Here, the Court is unaware of whether Plaintiff owes a debt to the United States. Thus,

the Undersigned finds that under Ratliff, the proper course is to award fees directly to Plaintiff

and remain silent as to the direction of those fees. See Simpson v. Astrue, No. 3:09-cv-143, 2010

WL 5088128, at *5 (S.D. Ohio Nov. 17, 2010) (Merz, M.J., Report and Recommendation

subsequently adopted) (quoting Preston v. Astrue, No. 3:08-cv-991, 2010 WL 3522156, at *2

(M.D. Fla. Sept. 8, 2010) (“Because it is not known in the present case whether or not Plaintiff

owes a debt to the United States, ‘[i]n light of Ratliff, . . . it [is] a better practice to simply award

the EAJA fees directly to Plaintiff as the prevailing party and remain silent regarding the

direction of payment of those fees. It is not the duty of the Court to determine whether Plaintiff

owes a debt to the government that may be satisfied, in whole or in part, from the EAJA fees

award.’”). The Undersigned notes, however, that if Plaintiff does not owe such a debt to the

United States, the Government should honor an assignment of Plaintiff’s of EAJA fees to her

counsel. See Ratliff, 130 S.Ct. at 2530 (Sotomayor, J., concurring) (“[T]he litigant’s obligation

to pay her attorney is controlled not by the EAJA but by contract and the law governing that

contract.”); Bishop v. Astrue, No. 3:08CV00375, 2010 WL 4279185, at *4 (S.D. Ohio Sept. 29,

2010) (Ovington, M.J., Report and Recommendation subsequently adopted) (“The Government

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retains the discretion and authority to determine whether Plaintiff owes a debt to it . . . . If no

such unpaid debt exists, or if the EAJA fees remain after a government offset, there appears no

reason on the present record for the Government not to honor Plaintiff’s assignment . . . .”). 

IV.

In sum, Plaintiff has provided satisfactory evidence to support her counsel’s requested

rate of approximately $180.00 per hour. It is, therefore, RECOMMENDED that the Court

GRANT Plaintiff’s Motion for an Award of Attorney’s Fees and AWARD Plaintiff attorneys’

fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, in the amount of $3,645. (ECF

No. 18.) It is further RECOMMENDED that the Court issue no order regarding the direction

such fees must be paid. 

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

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court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: March 28, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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